Dodging presidential coconuts aimed at Sri Lanka’s judiciary

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Hammer blows seem to be coming swiftly and cruelly from core points of political power in Sri Lanka, impacting hard on the country’s apex court.

Was all this hot air warranted?

First, President Ranil Wickremesinghe has resorted to his favorite tom-tom beat by warning the courts off interfering into what he thinks is just and good. This sentiment, fast evolving into an alarming stamp of this Presidency, was phrased in veiled terms, (ironically) to a forum of coconut growers who may have been justly bewildered as to this brouhaha had to do with the besieged coconut industry and their own plight.

The President was thoroughly miffed that petitions had been filed in the Supreme Court by opposition political parties challenging aspects of the restructuring process. Sri Lanka’s domestic debt restructuring process is a matter for Parliament which has sole control over public finance, he said, adding that ‘we cannot take orders or instructions from anyone else.’ There is little doubt as to who this ‘anyone else’ may be.

But as much as the coconut growers in question would have been bewildered by all of this, the bewilderment transcends that space. We are also gripped by that same confusion. It is a fact that Parliament has sole control over public finance. That does not require special Presidential emphasis. Instead, President Wickremesinghe may have been better advised to have spoken about the abdication of that ‘sole control’ over public finances by the House during the past few years.

Classic case of the ‘cart coming before the horse’

This was how a corrupt and venal political command along with their faithful ‘captured’ the determination of monetary policy. That was a singular factor which brought this nation to bankruptcy and relegated citizens to despair while a few grew fat. The populace is now being forced to swallow the bitter pill of debt restructuring which still impacts majorly on pension funds of workers, that all Governments have merrily treated as their money chest.

Regardless, was it reasonable for the President to lash out in this way? It may have been a different matter if the Court had handed down orders impacting on debt restructuring, leading to politicians ranting and raving. That is a pattern that we are all too familiar with. But perchance, the President seems to be objecting to use of constitutional provisions that give citizens the power to take violations of fundamental rights, whether right or not as the case may be, to the Court.

Granted, these statements were effectively a ‘watch your step’ caution to the Court, made in advance before the petitions were considered. As it so transpired, the petitions in issue were anyway dismissed by the Supreme Court this week. But what could have been a perfectly reasonable and legitimate dismissal has now been tainted by the inevitable murmur of discontent tracing itself back to the President’s warning to his captive audience of coconut growers, earlier this month.

Contempt and the President

Dodging Presidential coconuts lest they land on the heads of the judiciary is not a development that strikes confidence in Rule-of-Law based governance both here and overseas surely? It is also an amusing question, particularly given that the Government has proposed a Contempt of Court  Bill as to whether these and similar remarks that, the Opposition alleges, are aimed at ‘intimidating the judiciary’ amount to contempt?

In other words, do such words intend to ‘bring the authority of a court, tribunal or institution and the administration of justice into disrespect or disregard’? If the matter had rested there, we may have dusted off the nasty hullabaloo with a passing caustic remark. But no, now another controversy has arisen over the Speaker’s pronouncement this week that ‘orders or judgments’ cannot be issued against a resolution passed by Parliament.

In that regard, the Government has cited the Anura Bandaranaike ruling (2001) that, “parliamentary proceedings cannot be called into question and/or interfered and/or intervened by the Courts.’ But the circumstances of the 2001 ruling were different, as opposition parliamentarians have pointed out on the floor of the House.

Difference between the Speaker’s rulings, 2001 and 2023

Put simply, the most important difference was that, in fact, the Supreme Court had issued interim orders restraining the (then) Speaker from taking action in respect of the impeachment of ex-Chief Justice Sarath Silva. Accordingly, his firm stand was that the interim orders are not binding on him and that the Court had no jurisdiction thereto.

This position was eminently justifiable whatever we may opine on the late Mr Bandaranaike’s a tad too liberal interpretation of Section 3 of Sri Lanka’s Parliamentary Powers and Privileges Act. That Section is to the effect that,  ‘there shall be freedom of speech, debate and proceeding in Parliament and such freedom of speech, debate or proceedings shall not be liable to be impeached or questioned in any court or place out of Parliament.‘

On the current controversy however, how and where does such ‘impeachment’ or ‘questioning’ of the freedom of speech, debate and proceeding in Parliament arise in the first place? The Court had not even heard the petitions. True, the Parliamentary resolution of domestic debt ‘optimization’ had been passed by the House.

Exercising constitutional rights by citizens

All that is well and good. But as we are constrained to repeat, the Court was yet to deliver its decision on the same. No ‘review’ had taken place as such. So as the President’s remarks seem to imply, does the very act of filing a fundamental rights challenge in the court constitute that ‘‘impeachment’ or ‘questioning’ of a parliamentary resolution or a ‘proceeding’ of the House?

If so, that would be a serious infringement of constitutional rights. Colombo’s ‘glitterati’ who are vocal on safeguarding constitutional rights, inclusive of publishing learned tomes on the subject, should speak up on this without just leaving the dispute to screeching opposition parliamentarians. Sri Lanka’s Bar Association also needs to publicly state its stand.

Its  earlier intervention over the summoning of Supreme Court judges before a parliamentary Committee on Ethics and Privileges is a lesson in point. That was due to the issuance of an interim order preventing public officials from withholding funds allocated in the 2023 Budget for the holding of local government elections. At least, we may be thankful that there was an actual court order in that instance.

A tug-of-war between Parliament and the courts

That resolution, as we may remind ourselves, is still pending. The Bar affirmed that no privilege breach had occurred and stated that the Court should not be called upon to ‘explain’ its orders. Rightly so, ‘governmental and other institutions’  were called upon ‘to respect …the independence of the judiciary, any interference in the judicial process sets a dangerous precedent which must be strongly condemned.’

There has been a long tug-of-war between Parliament and the judiciary regarding their constitutional and traditional spheres of authority.  Typically, these have involved a clash between privilege and contempt powers. In 1983, a parliamentary resolution summoned Supreme Court judges to the Bar over a majority ruling issuing a writ of quo warranto against another judge.

The court ruling had restrained the judge in issue (KCE de Alwis) from sitting on a special presidential commission considering imposing civic disabilities on a former Prime Minister (the late Sirimavo Bandaranaike) and her Minister of Justice (Felix Dias Bandaranaike). He had asked for Parliament’s intervention arguing that the ruling was biased.

Lessons of history that we should not repeat

The reportage of the resolution was ruled as contempt (Hewamanne v. Manik de Silva and Another, (1983). Later, an amendment was passed to the Privileges Act by an infuriated JR Jayawardene regime effectively nullifying that decision.

Notwithstanding such less than pleasant memories, these are not healthy patterns of ‘uncle-nephew’ (JRJ-RW) grandstanding with the institution of the Sri Lankan judiciary that we must repeat.

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